Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36
Background
Anthony Cavanagh (‘the Plaintiff’) had been working as a Racecourse Manager at the Bushland Drive Racecourse (‘the Defendant’) for 12 years. The Plaintiff’s work required him to frequently look back over his right shoulder from the seat of a tractor to judge the height of the land leveller attached to the tractor’s rear. As a consequence of such frequent, prolonged movement over 12 years, the Plaintiff sustained serious injuries to his neck and shoulder, culminating in a 27% Whole Person Impairment.
Whilst the parties agreed that the injuries were sustained by an aggravation or acceleration of the Plaintiff’s degenerative disease in his cervical spine, and that his employment was a significant contributing factor to that degeneration, the Defendant submitted that it was not liable for the Plaintiff’s injuries, as they had not been negligent.
District Court Trial
Issues arose in this case, when, during cross-examination in the NSW District Court, the Plaintiff gave divergent evidence as to how frequently he looked over his shoulder, and the extent to which he turned is body when looking over his shoulder. Initially, the Plaintiff told the Court he was required to look back over his shoulder ‘every few seconds’, in 3 to 4 hour stints, for 6 days per week. However, the Plaintiff later implied that he only looked back over his shoulder approximately once per minute.
Judge Russell concluded that the Plaintiff only looked over his shoulder once per minute, rather than once every few seconds. His Honour found that at a frequency of once per minute, a risk of injury was not reasonably foreseeable, and therefore, the Defendant had not breached its duty of care.
Court of Appeal Trial
On appeal, the Court found that in assuming the Plaintiff only turned his head once per minute, Judge Russell failed to adequately consider that the Plaintiff’s attention was ‘predominantly direct to the rear’ of the tractor, and also failed to provide reasoning as to why the Plaintiff’s testimony about turning his head back multiple times per minute, was rejected. The Court also found that Judge Russell failed to fairly consider the relevant occupational therapist report, which found that a risk of injury to the Plaintiff was reasonably foreseeable, irrespective of the precise frequency of the movement.
In line with this expert report, the Court held that regardless of whether the Plaintiff turned his head once per minute, or several times per minute, it was reasonably foreseeable that such repetitive movement every day for 12 years would put the Plaintiff at risk of injury. The Court stated that “a reasonable response by his employer to the foreseeable risk of harm posed by [the worker’s] employment would have been not to permit that to occur for many years, but instead to have installed a mirror, or perhaps a rear-vision camera, or use a different tractor with a swivel seat….”
The Court concluded the Defendant failed to provide a safe system of work for the Plaintiff, and consequently, breached their duty of care. The Court set aside the original judgement and orders, and awarded damages in the Plaintiff’s favour in the sum of $1,004,411.00.